Citation Nr: 1641288 Decision Date: 10/21/16 Archive Date: 11/08/16 DOCKET NO. 12-16 038 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to a rating in excess of 20 percent prior to February 23, 2016, and in excess of 40 percent since then, for degenerative disc and joint disease of the lumbar spine. 2. Entitlement to a rating in excess of 20 percent prior to March 1, 2014, in excess of 0 percent prior to February 23, 2016, and in excess of 40 percent since then for radiculopathy of the right lower extremity. 3. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Dean, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1991 to August 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The Veteran's claims file is now in the jurisdiction of the Waco, Texas RO. In July 2015, a Travel Board hearing was held before the undersigned; a transcript of the hearing is associated with the record. In September 2015, the Board remanded the claims for further development. In an April 2016 rating decision, the RO granted a higher 40 percent rating for degenerative disc and joint disease of the lumbar spine and a higher 40 percent rating for right lower extremity radiculopathy, both effective February 23, 2016. The Veteran, however, is presumed to be seeking even higher ratings during the entire period under appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). In the September 2015 remand, the Board noted that during his hearing, the Veteran raised claims for headaches, vertigo, and depression as side effects of medication used to treat his low back pain, and referred the claims to the Agency of Original Jurisdiction (AOJ) for appropriate action. There is no indication any development has been taken on these claims, therefore they are being re-referred to the AOJ. 38 C.F.R. § 19.9(b) (2015). The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND The Board finds that additional development is necessary before a decision may be rendered regarding the issues on appeal. The Veteran underwent a new VA back conditions examination in February 2016 pursuant to a Board remand. After review of the examination report, the Board finds that an additional VA examination should be obtained. The examiner noted that the Veteran had pain during range of motion testing that caused functional loss, but did not indicate at what point pain occurred. Therefore, the Board finds that the February 2016 examination is inadequate for rating purposes because it is incomplete. See 38 C.F.R. § 3.310; see also Stegall v. West, 11 Vet. App. 268 (1998) (regarding legal necessity of compliance with previous Board directives). The Board finds that the Veteran's claims for radiculopathy of the right lower extremity and TDIU are inextricably intertwined with the claim for a higher rating for his degenerative disc and joint disease of the lumbar spine. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both issues have been considered). Consideration of the claims for a higher rating for radiculopathy of the right lower extremity and TDIU must be deferred pending the resolution (development and readjudication) of the lumbar spine claim. Accordingly, the case is REMANDED for the following action: 1. The AOJ should secure for association with the record updated (to the present) records of any/all VA or private treatment the Veteran has received for the issues on appeal; this specifically includes treatment records from the VA North Texas Health Care System from September 2015 to the present and from the Kansas City VA Medical Center from October 2014 to the present. 2. After completing directive (1), the AOJ should arrange for an appropriate VA examination(s) of the Veteran to ascertain the current nature and severity of his service-connected degenerative disc and joint disease of the lumbar spine, to include radiculopathy of the right lower extremity. All indicated studies should be performed if deemed necessary by the examiner for the evaluation of the Veteran under the pertinent rating criteria. The examiner should identify all symptoms and impairment associated with the Veteran's lumbar spine and radiculopathy, noting their frequency and severity. When measuring range of motion, the examiner should specifically state the degree at which any pain begins. The examiner should address whether there is any additional functional loss during flare-ups. The examiner should also specifically address the impact such disabilities have on the Veteran's employability. Examination results should be clearly reported. 3. The AOJ should then review the obtained VA examination report(s) to ensure that the opinions contained therein are responsive to the questions posed. 4. The AOJ should then review the record and readjudicate the claims on appeal. If any issue remains denied, issue an appropriate supplemental statement of the case and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further appellate review. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ Nathaniel J. Doan Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of the appeal. 38 C.F.R. § 20.1100(b) (2015).